TEXAS REDISTRICTING & ELECTION LAW

Updates about ongoing redistricting litigation in the Lone Star State and coverage of election law more generally. This website's goal is to try to make sure the redistricting process and litigation over voting law is as transparent and accessible as possible to the public. Hopefully, it will be of some use to a broad range of interested parties, both lawyers and non-lawyers. Have questions, comments, suggestions, additional content, or a redistricting joke (or two)? Feel free to contact me: Michael Li, michael.li@mlilaw.com, 202.681.0641.
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What’s at issue?

The plaintiffs argue that the current Texas senate map (Plan S172) must be redrawn using “eligible voters” rather than “total population” - the measure long used by the Texas Legislature - because the latter now results in districts with significantly differing numbers of voters.

By not using eligible voters, the plaintiffs say the Texas Legislature violated the “one-person, one vote” principle of the Constitution’s Fourteenth Amendment by allowing some voters’ votes to count for more than those of others.

Why are there disparities?

In Texas, the major driver of disparities in the number of eligible voters is the high number of non-citizens in parts of the state - mainly its urban and suburban cores. For example, in places like Dallas and Houston, commonly accepted estimates are that around half of adult Hispanics are non-citizens.

Of course, disparities also can exist for any number of other reasons, including higher numbers of children under 18 in fast growing parts of the state or a larger number of people who are unable to vote because of felony convictions.

However, differing citizenship rates are, by far, the largest driver of disparities in the number of eligible voters.

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What does “eligible voter” mean?

In their complaint, the plaintiffs do not set out the specific way of calculating eligible voters that they believe should be used to draw districts.

However, they suggest that disparities exist using any of the common measurements of eligibility, including citizen voting age population (CVAP), registered voters, and non-suspense voters.

How would drawing districts using “eligible voters” change the current map?

At present, Texas senate districts have a target population of 811,147 people.

If courts were to require maps to be drawn using some measure of eligible voters, the target size of districts also would change.

For example, although Texas has over 25 million people, its citizen voting age population in the most recent Census Bureau report was estimated to be just 15,583,540. Using CVAP to draw districts would mean that each district would have a CVAP target of 502,695.

That target population would require significant reworking of districts that presently have large Hispanic populations.

In the Houston area, for example, SD-13, represented by State Sen. Rodney Ellis, has a CVAP population of only 419,035, and SD-6, represented by State Sen. Sylvia Garcia, fares even worse with just 377,505 citizens of voting age. Likewise, in the Dallas area, SD-23, represented by State Sen. Royce West, has just 456,955.

Even with permitted deviations from the target population, these districts would need to add population, mostly likely by drawing from neighboring Anglo-dominated districts. Though those people might or might not be Anglo, the need to add large numbers of people mean the demographics and electoral performance of the districts could change materially. In fact, the need to add people might very well jeopardize the protected status that those districts currently enjoy under section 2 of the Voting Rights Act.

In other words, this could be a very big deal not only for Hispanics but also potentially African-Americans.

There could be practical impacts as well for legislators since urban districts would likely end up with far greater numbers of total people - who, although they might not be able to vote, still have need for constituent services - and be much larger physically as well. 

Wasn’t there a similar case recently about the same issue?

Yes. In fact, it involved many of the same players.

In Lepak v. City of Irving, the lawyers in the Texas senate case - also backed  by the Project for Fair Representation - represented Irving residents in arguing that the city’s new single-member council district map was unconstitutional because it had been drawn using total population rather than CVAP. 

Both the district court and the Fifth Circuit ruled against the Irving plaintiffs, citing the Fifth Circuit’s ruling in Chen v. City of Houston, which held that the question of whether to use total population or CVAP was a political question and thus not reviewable by courts.

The Irving plaintiffs sought to have the decision reviewed by the Supreme Court, but the high court declined last April to take the case.

However, the Texas senate case potentially represents another opportunity to have the Supreme Court take up the issue since any appeal would go directly to the Supreme Court as a matter of right.

More background on Lepak here.

Will the suit be heard by the same court as the other Texas redistricting claims?

Right now, the new case is pending before Judge Lee Yeakel of the Austin division of the Western District of Texas.

However, it is possible that one or more (or all) of the parties in the existing redistricting cases could ask that the case be transferred to the San Antonio division so that it can be consolidated with the other cases.

Doing so certainly would make sense since the new case - like the existing cases - must be heard by a three-judge panel because it involves a challenge to a statewide legislative body.

On the other hand, while the San Antonio panel has experience with the current state senate map and knowledge of the disputes that gave rise to the map’s present form, there are no ongoing disputes over that map, other than disputes over the amount of attorneys fees awarded to State Sen. Wendy Davis and LULAC.

Does the suit challenge the state house or congressional maps?

No. The suit - for now - only challenges the state senate map.

Could the new case affect the 2014 election?

In theory, yes.

The plaintiffs’ court papers ask for the court to block the state from using Plan S172 and to “establish constitutionally valid state senate districts prior to the next scheduled state senatorial election” (i.e., the November 2014 election).

However, that would likely be a highly unpopular step among the winners of this year’s Texas primary - most of whom do not face serious competition this November - and it likely would be viewed with disfavor by the court and the bulk of the Texas political class as well.

In any event, it is by no means clear, even if the court were inclined to grant the relief sought, that the complicated process of drawing a new map could be completed in time before election deadlines kicked in.

This morning, two Texas voters filed a suit in federal court challenging the state senate map drawn by the Texas Legislature on the grounds that it violated the equal protection guarantees of the Fourteenth Amendment by using total population rather eligible voters to draw districts.

The plaintiffs in the case are backed by the Project for Fair Representation, which also helped back Shelby County’s challenge to section 5 of the Voting Rights Act as well as efforts to overturn affirmative action policies at the University of Texas at Austin.

The Center’s press release announcing the new Texas suit can be found here.

Bert Wein of the Washington D.C. firm of Riley Wein represents the plaintiffs as counsel of record in the case. Wein also argued both the Shelby County and the Fisher cases at the Supreme Court.

The case has been assigned Case No. 1:14-cv-00335-LY.

Lawyers for the Justice Department filed a motion yesterday in the Texas redistricting case asking the three-judge panel in the case to order the State of Texas to turnover legislative documents.

DOJ lawyers told the panel that “for the first two years of this litigation, Defendants produced legislative documents through party discovery.” 

However, in the most recent round of discovery, DOJ said:

Texas has refused to provide the information and has instead told the United States that it must subpoena documents from each legislator and individual for whom the request is made.

                                               …

There is no reason that justifies Defendants’ actions here. Defendants simply have reversed course and asserted that the Texas legislature is a third party and that the United States may obtain certain legislative documents only through subpoenas to individual legislators.

DOJ told the panel that the state’s position was inconsistent with long-standing practice in section 2 litigation:

In nearly fifty years of litigation under the Voting Rights Act, the United States has consistently brought claims under Section 2 against jurisdictions in their entirety. In these cases, the United States has consistent obtained legislative documents in party discovery.

African-American and Hispanic plaintiff groups in the Texas voter ID case filed an advisory on Monday with Judge Nelva Gonzales Ramos, outlining their proposal for how trial should be conducted.

The advisory responded to an earlier proposal by Texas Attorney General Greg Abbott that each side be given 24.5 hours of courtroom time to put on its case (including cross-examining witnesses of the other side).

African-American and Hispanic plaintiffs told the court that Abbott’s “proposed trial length of seven days is insufficient for all Plaintiffs to present all of the evidence and develop a complete record.”

Instead, they proposed that trial start on September 2 and conclude on September 19, giving each side 45 hours of trial time.

In making the request, the plaintiff groups noted that while the six complaints in the consolidated case “contain similar core allegations centering on Section 2 of the Voting Rights Act, several also include additional claims that broaden the proof issues beyond Section 2.”

They also told the court that they anticipated that there would be both more fact witnesses and more expert witnesses than in the section 5 preclearance case tried in Washington in early 2012.

The groups, however, offered a number of proposals to streamline the process, including permitting (but not requiring) use of declarations in lieu of direct testimony and allowing parties to use deposition and trial testimony from the section 5 case.

The advisory noted that it was filed on behalf of all plaintiffs in the case other than the Justice Department, who, the advisory said, had “not yet stated its position on this matter.”

After a hearing this morning, Judge Nelva Gonzales Ramos entered an amended scheduling order in the Texas voter ID case, adopting the scheduling proposal offered by plaintiffs over the State of Texas’ alternative proposal.

Under the amended schedule, the deadline for completion of fact discovery is being extended May 2 to June 27, and the deadline for expert discovery will move from July 15 to August 17.

The parties also gain an extra month - until August 22 - to file dispositive motions.

The start of trial remains set for September 2.

A copy of the amended scheduling order can be found here.

Today brought dueling filings by Texas Attorney General Greg Abbott and the plaintiffs in the Texas voter ID case, with each side sparring over various scheduling deadlines.

In separate filings (here and here), Abbott and the plaintiffs told Judge Nelva Gonzales Ramos that they had been unable to negotiate a mutually agreeable amended pre-trial schedule and, therefore, were submitting alternative proposed orders.

 Under the plaintiffs’ proposed amended scheduling order, the current scheduling order would change as follows:

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General Abbott’s proposed amended schedule, by contrast, would provide, among other things, for a substantially shorter extension of the fact discovery deadline and require that the exchange of expert reports start slightly sooner:

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In a second filing, General Abbott’s office also told the court that the parties were not in agreement about how much time should be set aside for trial in the case.

The filing said that the state was proposing that each side be accorded three and a half days to present its case, while the plaintiffs were proposing that each side have seven days of trial time.

The state said that a shorter schedule could be accommodated by requiring direct testimony be by declaration for witnesses under a party’s control.

Judge Ramos holds a status conference in the case Tuesday morning at 8:30 a.m.

Judge Nelva Gonzales Ramos entered an order this afternoon in the Texas voter ID case memorializing her bench rulings earlier this week on discovery disputes.

On the issue of legislative privilege, the court said that it “recognize[d] the existence of a state legislative privilege but decline[d] to adopt Texas’s characterization of that privilege as absolute.” Instead, calling the privilege of a “qualified nature,” the court used the five-factor balancing test from the Texas redistricting case to determine whether “the legislative privilege should give way to the need for disclosure in discovery.”

On the record before it, the court said:

The Court finds that the first, third, and fourth factors weigh strongly in favor of disclosure. The evidence the United States seeks to compel is highly relevant to its claim because it bears directly on whether state legislators, contrary to their public pronouncements, acted with discriminatory intent in enacting SB 14. The federal government’s interest in enforcing voting rights statutes is, without question, highly important, as noted above. Further, the state government’s role is direct. The motive and intent of the state legislature when it enacted SB 14 is the crux of this Voting Rights Act case.

With respect to the second factor, the availability of other evidence, the United States insists that a concerted effort on behalf of SB 14’s key supporters to coordinate talking points and refuse to publicly engage with the concerns of minority legislators about the bill’s impact on minority populations has resulted in a situation where the documents sought are the only existing evidence of candid discussions about SB 14 …   [T]he Court holds that the second factor weights slightly in favor of disclosure given the practical reality that officials ‘seldom, if ever, announce on the record that they are pursuing a particular course of action because of their desire to discriminate against a racial minority.’

However, Judge Ramos said that “[g]iven the sensitive nature of the documents sought and the importance of preserving confidential communication among legislators, the Court is not inclined to fully pierce the legislative privilege at this point by authorizing complete and public disclosure of the documents and ESI at issue.”

Rather, the court limited disclosure to the parties and their counsel and experts and said that it would reserve questions about the applicability of the privilege to specific documents for the time of trial.

The court’s ruling did not apply, however, to documents of the 54 legislators who either did not respond to inquiries from the state about whether they wished to assert legislative privilege or else who expressly waived the privilege. Because legislative privilege is personal to legislators, the court said the state needed to turnover documents for those legislators, without restriction, by April 8.

After a hearing yesterday in the Texas voter ID case, Judge Nelva Gonzales Ramos gave Texas Attorney General Greg Abbott seven days to turn over, under seal, emails and other legislative documents that the AG’s office had collected from legislators in 2012 in connection with earlier litigation to try to obtain preclearance of the law under section 5 of the Voting Rights Act.

The attorney general’s office had contended in the case before Judge Ramos in Corpus Christi that the documents were exempt from discovery on the basis of legislative privilege or, alternatively, could only be sought by a separate subpoena to each legislator. 

However, while ordering turnover of documents in possession of the AG’s office, Judge Ramos agreed with Abbott that any legislative documents not already in the possession of his office would need to be subpoenaed from individual legislators rather than obtained through a document production request served on the state defendants. The court, likewise, held that Abbott’s office would need to subpoena members of Congress if it sought documents from them. 

The court also took under advisement a dispute between the parties about whether communications between legislators and the Texas Legislative Council were subject to attorney-client privilege.

The court, likewise, heard but did not rule on a request by DOJ to adjust discovery and expert deadlines in the case.

The court holds its next status conference in the case on Tuesday, April 8, at 8:30 a.m.

Today brought requests to file a couple of additional discovery-related briefs in the Texas voter ID case.

The first was a brief by the Justice Department responding to the position taken by the State of Texas that DOJ’s request for extension of discovery and expert witness deadlines should be rejected because DOJ’s own actions were responsible for a late start to discovery.

The brief told Judge Nelva Gonzales Ramos that, in fact, “the delay [State] Defendants decry is of their own making”:

Defendants did not produce the requested databases thirty days after the United States served its amended request for production. Rather, Defendants served inappropriate objections and newly demanded that the United State negotiate a global production agreement between all parties. Most notably, Defendants demanded that the United States convince the private plaintiffs to abandon any right to complete copies of state databases. The United States thus spent weeks spearheading negotiations between the parties on a joint process order governing data disclosure and comparisons.

The brief also said that the state had “fail[ed] to advise the court and the parties, in a clear and timely manner, of their positions concerning possession, custody, and control of legislative documents” and that DOJ’s efforts “to obtain Texas legislative documents essential to its intent claim” had been met with “Defendants’ resistance and delay.”

The second brief today was an amicus brief by the U.S. House of Representative’s Bipartisan Legal Advisory Group, taking the position that the State of Texas was not entitled to seek discovery from members of Congress using a document production request served on DOJ under Rule 34 of the Federal Rules of Civil Procedure.

The brief said the state’s request “fail[ed] for at least three reasons”:

First, the United States of America, as the plaintiff in No. 2:13-cv-00263, is the federal government in its Executive Branch manifestation only; it is not, and does not include, the Legislative Branch of the federal government - or the Judicial Branch for that matter - both of which are separate and independent branches. Defendants cannot alter this constitutional fact by the manner in which they define the plaintiff in their discovery request. Second, the Executive Branch - both practically and as a matter of law - does not have possession, custody, or control of the records of the House (or its Members, committees, and support offices), which means that DOJ has zero ability to compel the House (or any of its Members, committees, and support offices) to produce records responsive to Defendants’ Rule 34 discovery requests. Third, if Defendants need to seek discovery from the House (or any of its Members, committees, or support offices), they may do so pursuant to Federal Rule of Civil Procedure 45, which is a satisfactory - and, more importantly, a procedurally proper - method of seeking such discovery.

The court’s next status conference in the case takes place tomorrow, April 1, at 10:30 a.m.

Last Thursday, the Census Bureau released county-level population figures for the period July 1, 2012 - July 1, 2013.

While there’s a lot more analysis to be done, here’s a first look at the (very different) mix of things driving population change during that time in Texas’ 12 largest counties.

Note: For these charts, domestic migration includes both people moving to a county from elsewhere in Texas and those moving there from elsewhere in the U.S.

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The Fifth Circuit also has issued its docketing notice in the appeal by pollwatching group, True to Vote, challenging the decision of Judge Nelva Gonzales Ramos not to allow the group to intervene in the Texas voter ID case.

The group’s brief in the appeal is due on or before April 29.

Judge Ramos’ December 13 order turned down a request by the group to join the case as a party, saying that True the Vote had not pled  a particularized injury unique to it and that its generalized interests were adequately represented by Texas Attorney General Greg Abbott.

The Fifth Circuit has docketed Texas Attorney General Greg Abbott’s appeal of the decision of the three-judge panel in the Texas redistricting case to award attorneys fee to State Sen. Wendy Davis and LULAC.

Under appellate rules, the state’s opening brief is due by May 7.  Davis and LULAC then will have 30 days to file a response, and the state 14 day days after that to file a reply.

Once briefing is complete, the case will be set for oral argument.

In its January 9 decision, the three-judge panel awarded Davis and LULAC slightly over $360,000 in fees and expenses based on their status as prevailing parties in litigation over the senate map drawn by the Texas Legislature in 2011.

In a brief filed this morning, the State of Texas told Judge Nelva Gonzales Ramos that it strongly opposed extension of deadlines for completion of fact discovery and exchange of expert reports in the Texas voter ID case.

DOJ and the private voter ID plaintiffs had asked the court in a motion filed in mid-March to extend the end of discovery from May 2 to June 27 and to push the deadline for exchange of initial expert reports to the same day, citing the complexities of database matching and disputes over legislative privilege.

The state, however, accused the plaintiffs of “foot-dragging” and said the plaintiffs were asking the court “to force the burdens of an extremely compressed discovery and pre-trial period onto the [state] defendants.”

The state said the “plaintiffs have known from the get-go that legislative privilege would be asserted again  … [b]ut [that] it wasn’t until February 11, 2014, that plaintiffs finally sought to re-litigate the issue.”

The state also told Judge Ramos that DOJ had not shown “why the United States cannot complete the database comparisons by the end of fact discovery.”

Judge Orlando Garcia entered an order this afternoon granting a joint request of the parties in the Texas redistricting case to push the deadline for filing dispositive motions from April 23 to May 14.

The parties told the court in a motion that the request was made to allow for the completion of expert discovery after the parties exchange rebuttal expert reports on April 28.

Under the modified schedule, any dispositive motions are now due May 14, with responses due May 28 and replies June 4.

The court’s order modifying the scheduling order did not affect any other deadlines in the case.

The Quorum Report breaks news that State Rep. Lon Burnam (D-Fort Worth) has filed suit to contest primary election results in HD 90, contending that some of the mail ballot applications in the election had been signed electronically on an iPad in violation of Texas law.

The Monitor reports that three election challenges also were expected to be filed today in Hidalgo County.

 Zach Roth at MSNBC looks at claims made by Texas Attorney General Greg Abbott about voter fraud in the state.

Kuff reports that Harris County Clerk Stan Stanert has declared success in the implementation of voter ID - a claim Kuff finds disingenuous.

And last but not least - it’s from awhile back, but the Park Cities People writes about some of the wild spending the three-way GOP primary in HD 108. Portapotties, parking tickets, and airplane banners. Fun stuff!